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San Antonio Probate Blog

The probate process can be difficult on grieving executors

Taking time to grieve after the death of a loved one is important. Of course, grief does not always mean that all other activities can be put on hold indefinitely. In particular, if a family member has been named the executor of the remaining estate, he or she has the obligation of starting the probate process and seeing it through to completion.

Many Texas residents in this position may find it difficult to get started for a number of reasons. After all, the executor will need to ensure that funeral arrangements are addressed and that the costs are covered by the estate. As a result, the executor must jump into action almost immediately after the loved one's passing. It is also necessary for him or her to obtain copies of the death certificate to present to necessary entities to receive insurance proceeds, to stop government benefits and for other actions.

Probate can become complicated when a beneficiary passes away

When closing an estate, each case is different. Some Texas residents may need to handle a considerable number of assets for a deceased individual, and others may see relatively short and simple probate proceedings. Of course, issues could arise at any time during the process that may cause some confusion for executors.

One issue that could easily leave executors scratching their heads is what to do if a beneficiary passes away before obtaining his or her inheritance. In some instances, what happens to that inheritance can depend on whether the deceased beneficiary had created an estate plan. If he or she did, the inheritance may pass directly to the estate and be distributed in accordance with the beneficiary's estate plan. If not, the assets will likely pass on according to state intestate succession laws.

Do your loved one's will and trust contradict each other?

You may have felt relieved to know that your parent prepared an estate plan before passing away. An estate plan can relieve a family of much confusion and tension because it clarifies the goals and wishes of the deceased. This may reduce or eliminate the chances of family members arguing over the distribution of property or even the final resting place of the deceased.

You may have been surprised and delighted to learn that your parent not only drafted a will but also formed a revocable trust. However, on closer examination, you and the other heirs discovered that the two documents contradict each other. Now, instead of having a smooth and stress-free probate, you and your family must determine which document to follow.

Probate litigation involves investors looking for payment

After a person's passing, his or her final affairs need to be handled. In some cases, this process can be complicated, especially if claims come against the estate. Probate litigation can result if creditors or other parties feel that they are owed something from the estate that does not appear to be forthcoming.

Texas readers may be interested in a lawsuit currently underway in another state. According to reports, the lawsuit comes from a group of individuals claiming that the decedent stole over $10 million from them after they made investments with him. The man apparently died without a will and had over $200 million in debt at the time of his passing. His family did not want to conduct an inventory of his estate because they believed that it would cost more than the remaining assets of the estate.

Ocasek estate may see probate litigation due to pending divorce

Divorce can cause a number of complications to arise in a person's life. However, when a person dies while his or her divorce case is still underway, it is possible for those complications to spill over to the individual's remaining estate. In some cases, probate litigation may result if those complications cause conflict.

Texas readers may be interested in an estate that could see some issues. It was recently reported that the lead singer of The Cars, Ric Ocasek, was in the midst of a divorce when he passed away in September. He and his wife had been together for 30 years, but because of their pending divorce, Ocasek had taken steps before his passing to write his soon-to-be ex-spouse out of his will. The will included a stipulation that she should not be entitled to an elective share of the estate despite their not being formally divorced because she abandoned him.

Who is responsible for paying a mortgage during probate?

Surviving loved ones have a lot to handle after the death of a family member. The executor of the estate, in particular, has a lot of responsibility when it comes to ensuring that necessary final affairs are handled. It is common for many questions to come with this role, and one of those questions may be what to do with a remaining mortgage during probate.

Texas executors may understandably face confusion when it comes to mortgages. Though the account holder has passed away, the mortgage payments still need to be made. If they are not, serious issues could result that affect many people, especially loved ones who may still be living in the home or hoped to inherit it. Still, the payments should come from the estate, so the executor needs to ensure that there are enough funds to cover those payments.

Is choosing a professional executor better for probate?

Many Texas residents have concerns about who will handle their final affairs when the time comes. Though it may seem best to choose a family member to act as the executor, that is not always the case. Most people have little knowledge and experience seeing an estate through probate, so it may make more sense to some to opt for a professional.

Many banks have the option of acting as the executor of an estate. Some people may find using this type of outside party more acceptable because banks already have money management experience and have likely seen multiple estates through probate already. Rather than placing the substantial responsibility on an inexperienced loved one, some parties may instead want to use a bank.

Do you want to act as the personal representative for an estate?

One of the biggest estate planning mistakes that any Texas resident could make is to not create a plan at all. Unfortunately, far too many people choose not to create an estate plan or do not start the process soon enough. As a result, surviving loved ones often have to try to figure out how to work through probate without instructions from the decedent.

An important part of probate is having someone to see the estate through the process. Often, individuals name their desired executor in their will, but if your loved one did not create a will, the court will decide who will represent the estate. If you want to act as the personal representative, you may wonder how you can throw your hat into the ring.

Probate litigation could result from a dishonest trustee

When individuals do not fully understand how certain matters work, it can be easy for others to take advantage of them. For example, many Texas residents do not fully understand the ins and outs of the probate process or what power executors and trustees have. In some cases, people in these positions may try to act unscrupulously, and beneficiaries may find that they need to move forward with probate litigation to address issues.

One way that a trustee could act in a dishonest manner is to tell beneficiaries that he or she has the right to change the terms of the trust. Typically, the trustmaker will create specific terms, and the successor trustee, who commonly takes over after the trustmaker's passing, must adhere to those terms. If the trustee does not, he or she has breached the fiduciary duty.

A decedent's credit report could be useful during probate

Being the executor of a loved one's estate can be a confusing task. Anyone in this position may find him or herself having to ask many questions in order to complete the probate process correctly. Of course, it is better to ask questions and gain reliable information than to try to muddle through without the right knowledge.

One aspect of closing a Texas estate that is the responsibility of the executor is to pay off remaining creditors. It is not always easy to know every creditor that a loved one had, so some individuals may wonder how they can easily find out this information. One step that could help uncover creditors is for the executor to request a copy of the decedent's credit report from credit reporting companies.

Aldrich Law Firm, PLLC

Aldrich Law Firm, PLLC
8700 Crownhill Blvd.
Suite 200
San Antonio, TX 78209

Phone: 210-418-1150
Fax: 210-598-7221

8700 Crownhill Blvd. | Suite 200 | San Antonio, TX 78209
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